“Throughout history, it has been the inaction of those who could have acted; the indifference of those who should have known better; the silence of the voice of justice when it mattered most; that has made it possible for evil to triumph.”
Haile Selassie

Friday, January 3, 2014

WARNING: Attorneys Responding to IndyBar Judicial Survey Can Be Charged with Misconduct

The Indianapolis Bar Association just emailed its annual survey. What IndyBar is not telling attorneys is that if they answer the questions at the bottom of this page they can easily be
charged with violating Rule 8.2 by the Indiana Supreme Court
Disciplinary Commission.

The Commission takes the position that Rule
8.2 applies to any public or PRIVATE criticism of a judge, that it
applies to even opinions about those judges and that it will be the the
burden of any attorney charged with misconduct to prove that his criticism, again even the expression of an opinion, is true. The hearing officer in my case also takes the position that Rule 8.2 applies to private criticism. Attorneys need to know that even though Rule 8.2 might look the NY Times v. Sullivan actual malice standard, it is not interpreted that way. If you criticize a judge, in a public or private forum, that criticism (again even statements of opinions) is assumed false unless the attorney who makes the comment can prove it to be true.

I would strongly advise attorneys not to answer the survey, but if they do, not to offer any critical comments with respect to judges or judicial candidates. The Disciplinary Commission would have no problem getting its hands on those surveys and can obtain emailed responses from attorneys as well. I know very well that the Commission has no problem charging attorneys for criticism in private emails.

Below is the survey:

The Indianapolis Bar Association ("IndyBar")
has played a vital role in educating our community about the judicial system
since 1878. Today this continues through our effort to evaluate the
qualifications of candidates for judicial office in 2014.

Please accept this invitation to review our survey and,
if appropriate, complete it. The candidates identified in the survey have
indicated their intent to seek judicial office in Marion County in the 2014
election. Your answers should be based upon your knowledge of the candidates'
qualities, taking into consideration your direct professional contact with them
within the past three years. Please know your responses will be confidential
and optional comments, if any, will remain anonymous.

The survey is self-explanatory, and it will remain
available to you for completion until 5:30 p.m. Monday, January 20, 2014. Only
one response per recipient of this survey will be accepted and only responses
from email addresses receiving this survey directly from IndyBar will be
counted. This is to protect the integrity of the survey group.

We appreciate your candor and trust your responses will
accurately reflect your own opinions. The response of each survey recipient is
critical to the success of this survey.

Not to distract from the point of this article, but I can't help but roll my eyes at some of the members of the committee, including the current IBA President. It's always been easy to rig these surveys to trash certain candidates and given the committee makeup I have no doubt that would happen this year.

Back to the subject, I have also obtained copies of the questions on the surveys. Again, a warning. Answering these questions can subject an attorney to discipline, including suspension or disbarrment.

***

Have you had direct professional contact with any of the
following judicial candidates in the past three years?

Any attorney who fills one of those out can be charged with having violated Rule 8.2 by their comments and be put into a position where they have to spend the next year or so more, at the cost of thousands of dollars and hundreds of hours of their time, trying to prove their comments about the judge, even statements of opinion, are true.

Perhaps it's because I don't fully understand Indiana, but I'm skeptical that prosecution could result from an unfavorable comment in this survey. There's the question of notice. How can the Disciplinary Commission claim that attorneys have been given reasonable notice that answering the survey absent proof in hand violates the rules when it invites responses and promises confidentiality? It seems to me (speaking tactically) that the better approach is to use the survey against the charges. By providing annual anonymous surveys of about judges, the Bar puts attorneys on notice that criticism of judges without proof of their wrongdoing is acceptable. Then, they turn around and prosecute attorneys for offering opinions (in other venues). In your case, it raises a due-process issue. You had every reason to assume that rule 8.2 does not proscribe criticism of judges, since criticism is invited by the Bar.

About Me

I have been an attorney since the Fall of 1987. I have worked in every branch of government, including a stint as a Deputy Attorney General, a clerk for a judge on the Indiana Court of Appeals, and I have worked three sessions at the Indiana State Senate.
During my time as a lawyer, I have worked not only in various government positions, but also in private practice as a trial attorney handing an assortment of mostly civil cases.
I have also been politically active and run this blog in an effort to add my voice to those calling for reform.